Pg 17 Flashcards
What is involved in the warrant exception for third-party consent?
When two or more people have an equal right to use property, any of them can consent to a warrantless search.
What is involved in common authority in order for a third-party to give consent to a search?
Mutual use of the property by people that have joint access or control
What is the burden of additional inquiry on police when it comes to third-party consent?
If there is any doubt, the police have the burden to make an additional inquiry to find out the degree of authority that the third-party has in order to consent to a search
Do co-occupants have the authority to consent to a search?
Yes, they have the authority to grant consent that is binding over the other person because of the assumption of the risk theory. When you share privacy with another person, you assume the risk that they might waive it and allow the police to search
Can a wife or roommate consent to the search of a home without the other person being present?
Yes
What is the presumption when it comes to spouses for giving consent to search?
Spouses are presumed to have authority over all areas of the homestead. Although this can be rebutted by a showing that the spouse was denied access to certain areas that were searched
Does the quality of the relationship matter when it comes to third-party giving consent?
No, that is irrelevant for the validity of consent. If someone stays in a marital household, the spouse keeps equal authority over the premises
Can a third-party give consent to a search after being told by the other party not to?
Yes because he is allowed to give consent in his own right
Can kids consent to a search?
It depends on the circumstances like their age and the scope of the consent. Kids can often allow people into the entryway
Would a four-year-old be allowed to give consent for police to enter a home?
No, because he is not competent
If a co-tenant is present at the time that police are asking the other cotenant for permission to search, and the first cotenant objects to the search, what happens?
The objecting cotenant prevails over the consent by the other cotenant unless the objecting party’s rights are inferior
If a cotenant previously objected to a search, but then left the premises, can police get consent from the other cotenant to do a search?
Yes, because the objecting co-tenant must be physically present in order to stop the search. A previous objection does not continue indefinitely
If one party’s interests in a home or place are superior, and he objects to a search, what happens?
His objection controls. This applies for things like a child/parent relationship, or in military barracks
Can parents consent to the search of their child’s room or things?
Yes, if that child lives at home or is a minor because the parent’s rights are superior to the child’s rights. This is true even if the child is at home and objecting to the search
What are the areas of a home that a person can grant consent to search for?
Only the ones that the person has actual control over, not private areas that are reserved for other co-tenants
If a reasonable police officer could conclude that a third-party had access to an area and that consent to search is valid, but it turns out that the police made a mistake, does that violate the fourth amendment?
No, as long as the mistake was reasonable
Can police remove a person that is objecting to the search in order to prevent him from objecting?
No
What areas of a home can a tenant consent to be searched?
His own areas, but not any that are retained by the landlord
Can a joint tenant consent to the search of an entire house?
Yes
Can a hotel clerk give consent for a rented room to be searched?
No
Can a host consent to the search of the premises of a guest?
Yes, but not a suitcase or anything that has a high expectation of privacy in that area
What are the three approaches that are used for getting consent to search with regard to the belongings of a guest or a visitor?
PAR
– possession test
– actual notice test
– relationship test
What is involved in the possession test for getting permission to search a guest or visitor’s belongings?
Cops can search personal items like purses or clothing that are not in the owner’s possession if they are found while executing a search warrant
What is involved in the relationship test for searching the belongings of guests or visitors?
Must ask if the defendant had a special relationship to the place beyond being a visitor or passerby
What is involved in the actual notice test for police getting consent to search a guest or visitor’s belongings?
Police can search an item that may contain the object of a warrant unless police put them on notice that the item belongs to a non-resident
What is the emergency aid doctrine?
If the police find someone unconscious, disoriented, or incoherent in a vehicle, it is reasonable for the police to enter and to give first aid and just search for information about why the person was injured
What is involved in the automobile exception to a warrant?
If police have probable cause to believe that evidence, fruits, or instrumentalities of a crime are in a vehicle, they can search anywhere in the vehicle
What are things that are involved in the automobile exception under the definition of “vehicle“?
Boats, private planes, motorcycles, motorhomes
Under the automobile exception is it possible for police to search containers that might reasonably hold evidence inside the car?
Yes, they can search anywhere in the car if they have probable cause that evidence is there
What is the rationale behind the automobile exception to a warrant?
The inherent mobility of cars creates an exigency that justifies no warrant
What is a reason that searches of an automobile are allowed without a warrant?
People inside have a limited expectation of privacy, the law-enforcement interest is great because vehicles are often used in crimes, vehicles are highly mobile so exigent, and passengers usually know each other or are engaged in a common enterprise
Does the nature of the vehicle matter for the automobile exception?
No, all that matters is locomotion and being subject to pervasive government regulation that produces a limited expectation of privacy
What is required of a vehicle in order for the automobile exception to apply to it?
It must be capable of being used on the highway, not for residential purposes, and there must be probable cause
Can police unlawfully enter private property to do a search of a vehicle on the property?
No
What are the things that police can search under the automobile exception to a warrant?
The whole vehicle and they can open any package, luggage, or container that might reasonably have the item they are looking for regardless of who owns it. They can also inspect any passenger’s belongings that are found in the car that are capable of concealing the object of the search without needing to identify the owner
If the automobile exception applies to do a search, can police tow the vehicle to the station and search it later?
Yes
If cops have probable cause to believe that a vehicle itself is contraband, can they seize it from a public place without a warrant?
Yes
What are the elements for the automobile exception?
– mobility
– government regulation
– probable cause
What is required for the mobility element for the automobile exception to apply to a warrant?
Vehicle must be readily moveable on it’s own locomotion and parked in an area that is proximate to public roads. The area that it is parked in cannot normally be used for residential purposes
Is a motorhome considered to be a vehicle or a home for the automobile exception?
Must consider things like the location of the motorhome, if it is connected to utilities, if it is readily mobile, if it has convenient access to public roads, etc.
What is involved in the scope of a search under the automobile exception?
Police can only search areas of the car that could possibly have the thing that they have probable cause to search for. So if they are searching for a stolen computer, they can look in the trunk because the computer could be there, but if they found cocaine in the glove box, that would not be admissible because the computer couldn’t be in the glove box and thus they exceeded the scope of the search that was dictated by the probable cause
Under what circumstances can police enter a commonly used area of the curtilage of a house, such as the driveway, if they are doing a legitimate investigation to see is a car?
- if the vehicle’s incriminating character was immediately apparent
– if the police are lawfully in the place where it was in plain view or they had a lawful right of access to it
– if exigent circumstances existed
– if the car was abandoned and they were doing a limited search to find out who owned the vehicle
What are exigent circumstances that would apply to a vehicle that would allow some search of the vehicle?
- if a statute allowed seizure or forfeiture of a car that was used in a crime
– police impound a car because it was abandoned
– the car was illegally parked
– the car was parked in an unsafe mechanical condition
– the owner was arrested in or near the vehicle
